Comments on: What is the legal status of software developed with OSS tools?

Question: What is the legal status of software developed with OSS tools?

mkultra — Thu, 15 Dec 2005 11:36:10 -0800

What is the legal status of software developed with OSS tools?

An IP lawyer just tried to convince me that software created with open source tools must, by the nature of the license (assume GPL) be open source as well. I tried explaining that I think he's confusing making changes to the software with making something with the software. Now, I know in my guy that his stance is absurd, and brought up things like gcc, mySQL, and some of OS X's underpinnings that would make a significant chunk of commercially-developed software technically open-source.

Of course, being a lawyer, he doesn't accept my "because I say so" response. Is this delineation spelled out anywhere? Or is he correct that the GPL is legally flawed in this way and that the community has just tacitly decided to ignore this issue?

By: mkultra

mkultra — Thu, 15 Dec 2005 11:40:17 -0800

in my ~~guy~~ gut

By: grouse

grouse — Thu, 15 Dec 2005 11:43:22 -0800

If you link to a library issued under the GPL (not the LGPL), the FSF maintains that you have created a derivative work of the copyrighted and GPLed material, and must therefore release the code that links to it as well. That's the only thing that could remotely account for his confusion.

Of course, being a lawyer, he doesn't accept my "because I say so" response.

And you accept his? Ask him for the evidence to back up his stance. If he doesn't care enough to find said non-existent evidence, then why bother discussing it with him?

By: chrismear

chrismear — Thu, 15 Dec 2005 11:44:53 -0800

From the GPL FAQ:

Can I use GPL-covered editors such as GNU Emacs to develop non-free programs? Can I use GPL-covered tools such as GCC to compile them?

Yes, because the copyright on the editors and tools does not cover the code you write. Using them does not place any restrictions, legally, on the license you use for your code.

Some programs copy parts of themselves into the output for technical reasons--for example, Bison copies a standard parser program into its output file. In such cases, the copied text in the output is covered by the same license that covers it in the source code. Meanwhile, the part of the output which is derived from the program's input inherits the copyright status of the input.

As it happens, Bison can also be used to develop non-free programs. This is because we decided to explicitly permit the use of the Bison standard parser program in Bison output files without restriction. We made the decision because there were other tools comparable to Bison which already permitted use for non-free programs.

By: chrismear

chrismear — Thu, 15 Dec 2005 11:53:01 -0800

In fact, I think this paragraph from the actual GPL makes it pretty clear:

Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.

By: jellicle

jellicle — Thu, 15 Dec 2005 11:57:21 -0800

Erm, does Microsoft lay claim to the legal briefs he creates with Microsoft Word, a copyrighted program?

What exclusive right of the copyright holder is implicated when one uses a tool to write software?

I have to assume that by "IP lawyer", you mean something like "first-year law student". Tell him that his legal career will go further if he reads PRIOR to opining, not after.

As mentioned above, there's no point in *arguing* this. You can either read the license, or you can't. There's not any dispute about whether the GPL covers this except in Microsoft's marketing literature, which is purposefully false. Microsoft has done an admirable job in creating FUD, while every day millions of people use Microsoft software with license conditions that are vastly more severe and restrictive than any GPL program.

By: cmonkey

cmonkey — Thu, 15 Dec 2005 11:57:25 -0800

Many, many companies compile their closed source software with GCC. It is perfectly legal.

By: davar

davar — Thu, 15 Dec 2005 12:11:41 -0800

I tried explaining that I think he's confusing making changes to the software with making something with the software.

You're probably right, but take note of what grouse says:

If you link to a library issued under the GPL (not the LGPL), the FSF maintains that you have created a derivative work of the copyrighted and GPLed material, and must therefore release the code that links to it as well.

This is the business model of MySQL: if you use MySQL you have to link to the MySQL libraries, and therefore your product must be GPL, even though you do not make any changes to the MySQL sources. If you do not want to open source your own code, you can buy a commercial license from MySQL.

By: AmbroseChapel

AmbroseChapel — Thu, 15 Dec 2005 12:47:49 -0800

That's not what the "IP lawyer" is saying though. The equivalent would be if I used MySQL to sort the entries in a dictionary, then dumped them out and printed it. He's saying that the dictionary would have to be open-source because MySQL was used in the production. Which is ludicrous.

By: i_am_joe's_spleen

i_am_joe's_spleen — Thu, 15 Dec 2005 12:59:27 -0800

Point your IP lawyer friend at Groklaw's GPL Reference Page.

By: delmoi

delmoi — Thu, 15 Dec 2005 13:25:09 -0800

Your lawyer friend is clearly out of his mind.

That said, a lot of times lawyers over state the case in order to avoid being sued, not just losing suits.